FOIA changes controversial among Journalists but would be a boon for PuppycideDB

This week the Obama administration announced a trial program for a change to the way that seven major Federal bureaucracies handle Freedom of Information Act requests called "Release-to-one, release-to-all" or occasionally "Proactive Disclosure". The new plan is for the selected agencies, who include the Department of Homeland Security, the Department of Justice and parts of the Department of Defense, to publicly post the results of all FOIA requests. Currently, these agencies only publicly release records uncovered through FOIA requests if three different requests have sought the same records.

On its face, this change would likely strike readers as somewhere between irrelevant and pleasant. Isn't transparency the point of the Freedom of Information Act? Wouldn't this change to publicize the results of requests be a boon for transparency advocates? Many advocates and researchers would answer with a resounding "Yes!" However, quite a few journalists - usually among our society's most committed transparency advocates - have loudly condemnded the change.

The change has touched on an otherwise very subtle conflict between journalists and government transparency activists. Like blog commenters, being first is of immense importance to reporters. A so-called "exclusive", in which a single reporter or newspaper is able to be the first and only source of publication for a piece of information, increases circulation. Such exclusives represent, in a manner of speaking, a very short term monopoly on information. Readers wishing to be informed as timely as possible must seek out the publication with the exclusive to get that information. Other newspapers duplicate the story if it is important; if those newspapers are ethical they credit the source of their story to the holder of the exclusive. Awards and other honors frequently favor the first to a story. Publishing first is infinitely better than publishing fifth.

Journalists are limited in the methods available to them to acquire information about the operations of government. The most popular method is to attend press briefings, read press releases and interview press officers. The vast majority of press coverage of government activity is of this kind. At its best, information obtained in this method will be massaged to favor the interests of the officials releasing that information. At its worst, the government press conference is completely dishonest. There remain a whole host of reasons as to why the so many reporters credulously repeat the lines fed to them by government officers; for now, this complex issue is outside of the scope of this article - a post all to itself is warranted.

Another method of acquiring information is by acquiring sources inside the government or that are privy to some information about the machinations of government. The ability to obtain trust-worthy and credibly sources, to interview them and when needed, to protect them, are the hallmark skills of an honest-to-god journalist. That said, there are a vareity of ways in which sources can abuse reporters and in turn reporters may abuse sources. For example, it is widely understood that a determined writer can speak through his sources, and in this way can provide readers with the appearance of neutrality and objectivity while in reality the writer deliberately frames a narrative or argument using the words of a source. This might sound a bit opaque at first, until we consider that a reporter is provided with the opportunity not only to choose any of a near infinite supply of experts and such who might be tangentially related to any given issue, but the reporter also can condense a lengthy conversation that occurred over the course of several hours to a few short sentences robbed of context. When we hear the common refrain that a reporter will go to any length to get the right quote, it is to this dynamic that is being referred.

That isn't to say that sources of information are innocent babes whose strings are pulled by cunning Svengalis from the Tribune Company.

A reporter interviewing a source

The relationship between modern US presidential administrations and the apparently unironically named "White House Press Corps" is at least in some cases best understood as being that between a client and a master. Government apparatchiks 'leak' information to a reporter that serves their political or professional interests. The reporter gets an exclusive, and the government gets a mouth piece the world believes to be independent and objective. Perhaps the career of Valerie Plame, and her relationship to Bush administration official Scooter Libby, is one of the best know examples of this dynamic (although it would be a mistake to believe that this behavior is only the domain of one political party or politician). A somewhat different, though related form of source conniving is when hackers or blackmailers leak information to newspapers to enforce threats.

This brings us to our final source of government operations, and the topic of this blog: Freedom of Information Act requests. The United States' Freedom of Information Act was signed into law by Lyndon Johnson all the way back in 1966. The history of the Act is a complex one, with around a dozen amendments and executive orders that have limited or changed FOIA in one way or another. The gist of the Act is that it provides a mechanism through which members of the public can petition the government to release records. Using FOIA, journalists can obtain information about the government without a source or an official press release.

FOIA has always ben problematic. For one, it is deeply unpopular among just about everyone in nearly every branch of government. Its not difficult to understand why members of the state would dislike FOIA: they have absolutely nothing to gain from transparency and quite a bit to lose. Even if the documents to be released dont point to any embarrassing or criminal secrets, the processing of requests is a burden. These same bureaucrats who despite FOIA are in turn charged with administrating FOIA requests. Its not too difficult to imagine the results: FOIA requests are routinely ignored, feet are dragged to such an extent that it is not uncommon for FOIA requests to take years, officials lie about documents to avoid fulfilling requests and when documents are released what is handed over is often so heavily redacted as to be substantively meaningless.

Despite these problems, FOIA has had real benefits. For one, executive government agencies can be compelled by courts to fulfill their obligations under the Freedom of Information Act. Such lawsuits are rare, and lawsuits in which the government is forced to give up files are event more rare, but they have happened. Furthermore, the government has shown some very limited interest in releasing incredibly old documents that show agents of the state acting like monsters. So long as everyone involved is dead the government is often all to happy to release files confirming, for example, that the FBI tried to coerce American saint Martin Luther King, Jr into killing himself.

Occassionally, news stories relevant to people still breathing also find their way to sunlight through the Freedom of Information Act. Often these news stories are driven through a series of FOIA requests for seemingly disparate information, or circumstances in which government agencies are compelled to hand over entire databases of information. The Puppycide Database Project owes a great deal of our own data from just such a process, for example by allowing us to acquire databases containing information on the use of deadly force by federal law enforcement.

Investigations like this are labor intensive, to say the least. It takes time to not just process the FOIA request, but to make sense of often huge amounts of information presented in its most abstract format. And it is this amount of time that presents the problem.

If another news source were to discover what a journalist is researching, they could skip the initial work that was required to discover the story (like the effort to process the FOIA request) and be the first to publish. This thieving news organization would then gain the many advantages that come with publishing first.

Obtaining FOIA records has additional costs other than just filling out forms. When litigation is required to get officials to hand over documents, news organizations are almost always among those filing and paying for those lawsuits. Federal lawsuits are ruinously expensive. While for many news organizations these fights are matters of principle, they are also an investment. The investment pays off not when they win a lawsuit but when the government alters its behavior to avoid further litigation (US attorneys have bigger fish to fry, like getting police off the hook when they shoot dogs and their owners). Newspapers are, all else aside, a business. And when businesses litigate that litigation must be in their self-interest (businesses litigate for other reasons, like pettiness, revenge, and so on - but on the whole businesses, like every other group of human beings, respond to incentives).

By releasing the documents involved in every successful FOIA request to the public, newspapers are seemingly robbed of a large chunk of this incentive, because the documents are no longer part of an exclusive. News that isn't new isn't news anymore.

This is why Radley Balko, the Washington Post reporter responsible for coining the term Puppycide and long-time champion of transparency and those victimized by state violence called the subtle update to FOIA "evil genius".

So how does all of this impact the Puppycide Database Project? The Freedom of Information Act is first and foremost a tool for compelling information from Federal agencies. PuppycideDB is primarily interested in municipal, county and state government records. We focus on these agencies because we have good reason to believe that the vast majority of puppycide victims are shot by police working these agencies. At least initially, this change will have very little impact on our day-to-day research and operations.

If the policy grows to encompass Federal Agencies like the USDA, which is responsible for killing millions of animals every year, including thousands of domestic pets, this change could have a dramatic impact on our ability to gain additional records. The impact for us would be entirely positive.

Before we wrap up this post, let's review the distinction between federal Freedom of Information Act policies and state regulation toward the same end, like Florida's Sunshine Laws. During his first term, Florida governor Rick Scott updated the Sunshine Laws in exactly the same way as the White House has done with FOIA. Despite the concerns about the federal changes, there does not appear to have been a glut of story thefts. Furthermore, news organizations throughout the state have continued to litigate FOIA concerns. It might be interesting to track the rate of successful Sunshine law requests & lawsuits in Florida vs the rate of FOIA requests and lawsuits federally over the last four years. Unfortunately we have our hands full with the Puppy Project! Despite a lack of numbers, I was unable to reach a single reporter in Florida who believes that they had a story poached as a result of the Sunshine law changes. Journalists may want to at least consider the possibility that this issue may be somewhat of a tempest in a teapot, particulary given the boon that they represent to research organizations like Puppycide Database Project.